§ 96-8. Definitions.
Article 2.
Unemployment InsuranceDivision.
§ 96‑8. Definitions.
As used in this Chapter,unless the context clearly requires otherwise:
(1) "Benefits"means the money payments payable to an individual, as provided in this Chapter,with respect to his unemployment.
(2) "Commission"means the Employment Security Commission established by this Chapter.
(3) "Contributions"means the money payments to the State Unemployment Insurance Fund required bythis Chapter.
(4) "Employingunit" means any individual or type of organization, including anypartnership, association, trust, estate, joint‑stock company, insurancecompany, or corporation, whether domestic or foreign, or the receiver, trusteein bankruptcy, trustee or successor thereof, or the legal representative of adeceased person which has or had in its employ one or more individualsperforming services for it within this State. All individuals performingservices within this State for any employing unit which maintains two or moreseparate establishments within this State shall be deemed to be employed by asingle employing unit for all the purposes of this Chapter. Each individualemployed to perform or to assist in performing the work of any agent oremployee of an employing unit shall be deemed to be employed by such employingunit for all the purposes of this Chapter unless such agent or employee is anemployer subject to the tax imposed by the Federal Unemployment Tax Act,whether such individual was hired or paid directly by such employing unit or bysuch agent or employee, provided the employing unit had actual or constructiveknowledge of such work: Provided, however, that nothing herein, on or afterJuly 1, 1939, shall be construed to apply to that part of the business of such"employers" as may come within the meaning of that term as it isdefined in section one (a) of the Railroad Unemployment Insurance Act.
(5) "Employer"means:
a. Any employing unitwhich (a) within the current or preceding calendar year, and which for someportion of a day in each of 20 different calendar weeks within such calendaryear (whether or not such weeks are or were consecutive), has or had inemployment one or more individuals (not necessarily simultaneously andirrespective of whether the same individuals are or were employed in each suchweek); or (b) in any calendar quarter in either the current or precedingcalendar year paid for service in employment wages of one thousand five hundreddollars ($1,500) or more. Provided further, for the purpose of this paragraph, "employment"shall include services which would constitute "employment" but forthe fact that such services are deemed to be performed entirely within anotherstate pursuant to an election under an arrangement entered into by theCommission pursuant to subsection (l) of G.S. 96‑4, and an agency chargedwith the administration of any other state or federal employment security law.Provided further, for the purpose of this paragraph, "week" means aperiod of seven consecutive calendar days, and when a calendar week fallspartly within each of two calendar years, the days of that week up to January 1shall be deemed one calendar week, and the days beginning January 1, anothersuch week.
b. Any employing unitwhich acquired the organization, trade or business, or substantially all theassets thereof, of another which at the time of such acquisition was anemployer subject to this Chapter, or which acquired a part of the organization,trade, or business of another, which at the time of such acquisition was anemployer subject to this Chapter; provided, such other would have been anemployer under paragraph a of this subdivision if such part had constituted itsentire organization, trade, or business; provided further, that G.S. 96‑10,subsection (d), shall not be applicable to an individual or employing unitacquiring such part of the organization, trade or business. The provisions ofG.S. 96‑11(a) to the contrary notwithstanding, any employing unit whichbecomes an employer solely by virtue of the provisions of this paragraph shallnot be liable for contributions based on wages paid or payable to individualswith respect to employment performed by such individuals for such employingunit prior to the date of acquisition of the organization, trade, business, ora part thereof as specified herein, or substantially all the assets of another,which at the time of such acquisition was an employer subject to this Chapter.This provision shall not be applicable with respect to any employing unit whichis an employer by reason of any other provision of this Chapter. A successor bytotal acquisition under the provisions of this paragraph may be relieved fromcoverage hereunder by making written application with the Commission within 60days from the date the Commission mails him a notification of his liability andprovided the Commission finds the predecessor was an employer at the time ofsuch acquisition only because such predecessor had failed to make applicationfor termination of coverage as provided in G.S. 96‑11 of this Chapter. Asuccessor under the provisions of this paragraph who becomes an employer byvirtue of having acquired a part of the organization, trade or business of thepredecessor hereunder may be relieved from coverage upon making writtenapplication with the Commission within 60 days from the date the Commissionmails him a notification of his liability and the Commission finds that thepredecessor could have terminated by making the application under G.S. 96‑11if the part acquired had constituted all of the predecessor's business.
c. Repealed by SessionLaws 1985, c. 552, s. 1.
d. Any employing unitwhich, having become an employer under paragraphs a or b, has not, under G.S.96‑11, ceased to be an employer subject to this Chapter; or
e. For the effectiveperiod of its election pursuant to G.S. 96‑11(c) any other employing unitwhich has elected to become fully subject to this Chapter.
f. Any employing unitnot an employer by reason of any other paragraph of this subdivision, for whichwithin any calendar year, services in employment are or were performed withrespect to which such employing unit is or was liable for any federal taxagainst which credit may or could have been taken for contributions required tobe paid into a State Unemployment Insurance Fund; or which as a condition forapproval of this Chapter for full tax credit against the tax imposed by theFederal Unemployment Tax Act is required, pursuant to such act, to be an"employer" under this Chapter; or any employing unit required to be coveredby the Federal Unemployment Tax Act; provided, that such employer,notwithstanding the provisions of G.S. 96‑11, shall cease to be subjectto the provisions of this Chapter during any calendar year if the Commissionfinds that during such period the employer was not subject to the provisions ofthe Federal Unemployment Tax Act and any other provision of this Chapter.
g. Repealed by SessionLaws 1985, c. 552, s. 2.
h. Any employing unitwhich maintains an operating office within this State from which the operationsof an American vessel operating on navigable waters within or within andwithout the United States or ordinarily and regularly supervised, managed,directed, and controlled: Provided, the employing unit would be an employer byreason of any other paragraph of this subdivision.
i. Repealed by SessionLaws 1985, c. 552, s. 3.
j. Prior to January 1,1978, any institution of higher education or State hospital located in thisState which is an agency or instrumentality of this State, or which is owned oroperated by the State or an instrumentality of this State (or by this State andone or more states or their instrumentalities), provided such employing unit,in each of 20 different calendar weeks within the current or preceding calendaryear (whether or not such weeks are or were consecutive), has or had inemployment one or more individuals (not necessarily simultaneously andirrespective of whether the same individuals are or were employed in each suchweek), or in any calendar quarter in either the current or preceding calendaryear paid for services in employment wages of one thousand five hundred dollars($1,500) or more.
Forpurposes of this Chapter, "institution of higher education" means aneducational institution in this State which: (i) admits as regular studentsonly individuals having a certificate of graduation from a high school or therecognized equivalent of such certificate; (ii) is legally authorized in thisState to provide a program of education beyond high school; (iii) provides aneducational program for which it awards a bachelor's or higher degree, orprovides a program which is acceptable for credit toward such a degree or aprogram of training to prepare students for gainful employment in a recognizedoccupation; (iv) is a public or other nonprofit institution; and (v)notwithstanding any of the foregoing provisions of this subdivision, is auniversity, college, or community college in the State.
Forpurposes of this Chapter, "State hospital" means any institutionlicensed by the Department of Health and Human Services under Chapter 122C orChapter 131E of the General Statutes.
k. Notwithstanding anyother provision of this Chapter, any nonprofit organization or a group oforganizations (hereafter, where the words "nonprofit organization" areused in this Chapter, it shall include a group of nonprofit organizations), anycorporation, or any community chest, fund, or foundation that is organized andoperated exclusively for religious, charitable, scientific, testing for publicsafety, literary, or educational purposes, or for the prevention of cruelty tochildren or animals, and that is exempt or may be exempted from federal incometax under section 501(c)(3) of the Internal Revenue Code, as long as theemploying unit for some portion of a day in each of 20 different calendar weekswithin the current or preceding calendar year (whether or not the weeks are orwere consecutive) has or had in employment four or more individuals (notnecessarily simultaneously and irrespective of whether the same individuals areor were employed in each week).
l. Repealed by SessionLaws 1981, c. 160, s. 5.
m. Repealed by SessionLaws 1981, c. 160, s. 6.
n. With respect toemployment on and after January 1, 1978, any person or employing unit who (a)during any calendar quarter in the current calendar year or the precedingcalendar year paid wages of twenty thousand dollars ($20,000) or more foragricultural labor, or (b) on each of some 20 days during the current orpreceding calendar year, each day being in a different calendar week, employedat least 10 individuals in employment in agricultural labor for some portion ofthe day. Provided, that with respect to agricultural labor performed by a crewon and after January 1, 1978, the crew leader shall be deemed an employer if(1) either of the requirements set forth in the first sentence of thisparagraph are met; and (2) the crew members are not employed by another personwithin the meaning of the first sentence of this paragraph; (3) and if the crewleader holds a valid certificate of registration under the Migrant and SeasonalAgricultural Worker Protection Act; or substantially all the members of thecrew operate or maintain tractors, mechanized harvesting or crop dustingequipment, or any other mechanized equipment, which is provided by the crewleader. For purposes of this paragraph, the term "crew leader" meansan individual who (1) furnishes individuals to perform agricultural labor forany other person, (2) pays (either on his behalf or on behalf of such other person)the individuals so furnished by him for the agricultural labor performed bythem, and (3) has not entered into a written agreement with such other personunder which such individual is designated as an employee of such other person.The farm operator shall be deemed to be the employer of any worker hired by thefarm operator; any assignment to work with a crew or under a crew leadernotwithstanding. All the workers shall be deemed the employees of the farmoperator when the crew leader does not qualify as the employer under theprovisions set out in this paragraph.
o. With respect toemployment on and after January 1, 1978, any person who during any calendarquarter in the current calendar year or the preceding calendar year paid wagesin cash of one thousand dollars ($1,000) or more for domestic service in aprivate home, local college club, or local chapter of a college fraternity orsorority.
p. With respect toemployment on and after January 1, 1978, any state and local governmentalemploying unit, including the State of North Carolina, a county board ofeducation, a city board of education, the State Board of Education, the Boardof Trustees of The University of North Carolina, the board of trustees of otherinstitutions and agencies supported and under the control of the State, anyother agency of and within the State by which a teacher or other employee ispaid, and any county, incorporated city or town, the light and water board orcommission of any incorporated city or town, the board of alcoholic control ofany county or incorporated city or town, county and/or city airportauthorities, housing authorities created and operated under and by virtue ofChapter 157 of the General Statutes, redevelopment commissions created andoperated under and by virtue of Article 22, Chapter 160A of the GeneralStatutes, county and/or city or regional libraries, county and/or city boardsof health, district boards of health, any other separate, local governmentalentity, jointly owned or operated governmental entities, and the RetirementSystem. For purposes of this Chapter, any employing unit described in thisparagraph is not an employer by reason of hiring an intern.
q. With respect toemployment on and after January 1, 1978, any nonprofit elementary and secondaryschool. For purposes of this Chapter, "secondary school" means anyschool not an institution of higher education as defined in G.S. 96‑8(5)j.
r. An employee servicecompany which is an employing unit is the employer of an individual who isengaged in employment performing services for a client or customer of theemployee service company if the employee service company is taxed under theFederal Unemployment Tax Act (26 U.S.C. § 3301 to § 3311) on the basis of thatemployment. For purpose of this Chapter, "employee service company"means a leasing company or temporary help service which contracts with clientsor customers to supply individuals to perform services for the client orcustomer and which, both under contract and in fact:
1. Negotiates with clientsor customers for such matters as time, place, type of work, working conditions,quality, and price of the services;
2. Determinesassignments or reassignments of individuals to its clients or customers, evenif the individuals retain the right to refuse specific assignments;
3. Sets the rate of payof the individuals, whether or not through negotiation;
4. Pays the individualsfrom its account or accounts; and
5. Hires and terminatesindividuals who perform services for the clients or customers.
s. Any Indian tribe asdefined in the Federal Unemployment Tax Act, 26 U.S.C. § 3301 et seq.
(6) a. "Employment"means service performed including service in interstate commerce, exceptemployment as defined in the Railroad Retirement Act and the Railroad UnemploymentInsurance Act, performed for wage or under any contract of hire, written ororal, express or implied, in which the relationship of the individualperforming such service and the employing unit for which such service isrendered is, as to such service, the legal relationship of employer andemployee. Provided, however, the term "employee" includes an officerof a corporation, but such term does not include (i) any individual who, underthe usual common‑law rules applicable in determining the employer‑employeerelationship, has the status of an independent contractor or (ii) anyindividual (except an officer of a corporation) who is not an employee undersuch common‑law rules. An employee who is on paid vacation or is on paidleave of absence due to illness or other reason shall be deemed to be inemployment irrespective of the failure of such individual to perform servicesfor the employing unit during such period.
b. The term"employment" shall include an individual's entire service, performedwithin or both within and without this State if:
1. The service islocalized in this State; or
2. The service is notlocalized in any state but some of the service is performed in this State, and(i) the base of operations, or, if there is no base of operations, then theplace from which such service is directed or controlled, is in this State; or(ii) the base of operations or place from which such service is directed orcontrolled is not in any state in which some part of the service is performed,but the individual's residence is in this State.
3. The service,wherever performed, is within the United States, or Canada; such service is notcovered under the unemployment compensation law of any other state or Canada;and the place from which the service is directed or controlled is in thisState.
c. Services performedwithin this State but not covered under paragraph b of this subdivision shallbe deemed to be employment subject to this Chapter, if contributions are notrequired and paid with respect to such services under an employment securitylaw of any other state or of the federal government.
d. Services not coveredunder paragraph b of this subdivision, and performed entirely without thisState, with respect to no part of which contributions are required and paidunder an employment security law of any other state or of the federalgovernment, shall be deemed to be employment subject to this Chapter if theindividual performing such service is a resident of this State and theCommission approves the election of the employing unit for whom such servicesare performed that the entire service of such individual shall be deemed to beemployment subject to this Chapter, and services covered by an election dulyapproved by the Commission in accordance with an arrangement pursuant tosubsection (l) of G.S. 96‑4 shall be deemed to be employment during theeffective period of such election.
e. Service shall bedeemed to be localized within a state if:
1. The service isperformed entirely within such state; or
2. The service isperformed both within and without such state, but the service performed withoutsuch state is incidental to the individual's service within the State, forexample, is temporary or transitory in nature or consists of isolatedtransactions.
f. The term "employment"shall include:
1. Services covered byan election pursuant to G.S. 96‑11, subsection (c), of this Chapter; and
2. Services covered byan election duly approved by the Commission in accordance with an arrangementpursuant to G.S. 96‑4, subsection (l), of this Chapter during theeffective period of such election.
3. Any service ofwhatever nature performed by an individual for an employing unit on or inconnection with an American vessel under a contract of service which is enteredinto within the United States or during the performance of which the vesseltouches at a port in the United States, if such individual is employed on andin connection with such vessel when outside the United States: Provided, suchservice is performed on or in connection with the operations of an Americanvessel operating on navigable waters within or within and without the UnitedStates and such operations are ordinarily and regularly supervised, managed,directed, and controlled from an operating office maintained by the employingunit in this State: Provided further, that this subparagraph shall not beapplicable to those services excluded in subdivision (6), paragraph k,subparagraph 6 of this section.
4. Any service ofwhatever nature performed by an individual for an employing unit on or inconnection with an American aircraft under a contract of service which isentered into within the United States or during the performance of which andwhile the employee is employed on the aircraft it touches at a port in the UnitedStates, if such individual is employed on and in connection with such aircraftwhen outside the United States; provided such service is performed on or inconnection with the operations of an American aircraft and such operations areordinarily and regularly supervised, managed, directed, and controlled from anoperating office maintained by the employing unit in this State.
5. Notwithstanding anyother provision of this Chapter, "employment" shall include anyindividual who performs services irrespective of whether the master‑servantrelationship exists, for remuneration for any employing unit:
I. As an agent‑driveror commission‑driver engaged in distributing meat products, vegetableproducts, fruit products, bakery products, beverages (other than milk) orlaundry or dry‑cleaning services, for his principal;
II. As a traveling orcity salesman, other than as an agent‑driver or commission‑driver,engaged upon a full‑time basis in the solicitation on behalf of, and thetransmission to, his principal (except for side‑line sales activities onbehalf of some person) of orders from wholesalers, retailers, contractors, oroperators of hotels, restaurants, or other similar establishments formerchandise for resale or supplies for use in their business operations if thecontract of services contemplates that substantially all of such services areto be performed personally by such individual; except that an individual shallnot be included in the term "employment" under the provisions of thissubsection if such individual has a substantial investment in facilities usedin connection with the performance of such services (other than in facilitiesfor transportation), or if the services are in the nature of a singletransaction not part of a continuing relationship with the employing unit forwhom the services are performed.
6. Service of anindividual who is a citizen of the United States, performed outside of theUnited States (except in Canada), in the employ of an American employer (otherthan service which is deemed "employment" under the provisions ofparagraph b or e of this subsection or the parallel provisions of anotherstate's law), if:
I. The employer'sprincipal place of business in the United States is located in this State; or
II. The employer has noplace of business in the United States, but
A. The employer is anindividual who is a resident of this State; or
B. The employer is acorporation which is organized under the laws of this State; or
C. The employer is apartnership or a trust and the number of the partners or trustees who areresidents of this State is greater than the number who are residents of anyother state; or
III. None of the criteriaof divisions I. and II. of this subparagraph is met but the employer haselected coverage in this State, or, the employer having failed to electcoverage in any state, the individual has filed a claim for benefits, based onsuch service, under the law of this State.
IV. An "Americanemployer," for the purposes of this paragraph, means a person who is:
A. An individual who isa resident of the United States; or
B. A partnership if twothirds or more of the partners are residents of the United States; or
C. A trust, if all ofthe trustees are residents of the United States; or
D. A corporationorganized under the laws of the United States or of any state;
E. For the purposes ofthis subparagraph, United States includes all the states, the District ofColumbia, and the Commonwealth of Puerto Rico.
7. Services withrespect to which a tax is required to be paid under any federal law imposing atax against which credit may be taken for contributions required to be paidinto a State unemployment insurance fund, or which as a condition for full taxcredit against the tax imposed by the Federal Unemployment Tax Act is requiredto be covered under this Chapter.
g. On and after January1, 1978, the term "employment" includes services performed inagricultural labor when a person or employing unit (a) during any calendarquarter in the current calendar year or the preceding calendar year pays wagesof twenty thousand dollars ($20,000) or more for agricultural labor, or (b) oneach of some 20 days during the preceding calendar year, each day being in adifferent calendar week, employs at least 10 individuals in employment in agriculturallabor for some portion of the day. For purposes of this Chapter, the term"agricultural labor" includes all services performed: (1) On a farm,in the employ of any person, in connection with cultivating the soil, or inconnection with raising or harvesting any agricultural or horticulturalcommodity, including the raising, shearing, feeding, caring for, training, andmanagement of livestock, bees, poultry, and fur‑bearing animals andwildlife; (2) in the employ of the owner or tenant or other operator of a farm,in connection with the operation, management, conservation, improvement, ormaintenance of such farm and its tools and equipment, or in salvaging timber orclearing land of brush and other debris left by a hurricane, if the major part ofsuch service is performed on a farm; (3) in connection with the production orharvesting of crude gum (oleoresin) from a living tree, and the followingproducts if processed by the original producer of crude gum from which derived;gum spirits of turpentine and gum resin, or in connection with the ginning ofcotton or in connection with the operation or maintenance of ditches, canals,reservoirs, or waterways, not owned or operated for profit, used exclusivelyfor supplying and storing water for farming purposes; or (4)(A) in the employof the operator of a farm in handling, planting, drying, packing, packaging,processing, freezing, grading, storing, or delivering to storage or to marketor to a carrier for transportation to market, in its unmanufactured state, anyagricultural or horticultural commodity, but only if such operator producedmore than one half of the commodity with respect to which such service isperformed; (B) in the employ of a group of operators of farms (or a cooperativeorganization of which such operators are members) in performance of servicedescribed in subparagraph (A), but only if such operators produced more thanone half of the commodity with respect to which such service is performed. (C)The provisions of subparagraphs (A) and (B) shall not be deemed to beapplicable with respect to service performed in connection with commercialcanning or commercial freezing or in connection with any agricultural orhorticultural commodity after its delivery to a terminal market for distributionfor consumption; (D) on a farm operated for profit if such service is not inthe course of the employer's trade or business. As used in this subsection, theterm "farm" includes stock, dairy, poultry, fruit, fur‑bearinganimal, and truck farms, plantations, ranches, nurseries, ranges, greenhousesor other similar structures used primarily for the raising of agricultural orhorticultural commodities, and orchards. Provided, such labor is notagricultural labor performed by an individual who is an alien admitted to theUnited States to perform agricultural labor pursuant to sections 214(c) and101(a)(15)(H) of the Immigration and Nationality Act.
h. On and after January1, 1978, the term "employment" includes domestic service in a privatehome, local college club or local chapter of a college fraternity or sororityperformed for a person who pays cash remuneration of one thousand dollars($1,000) or more on or after January 1, 1978, in any calendar quarter in thecurrent calendar year or the preceding calendar year to individuals employed insuch domestic service.
i. The term"employment" includes service performed for any State and localgovernmental employing unit or for any Indian tribe, except that employmentdoes not include service performed (a) as an elected official; (b) as a memberof a legislative body or a member of the judiciary, of a State or politicalsubdivision thereof or of an Indian tribe; (c) as a member of the StateNational Guard or Air National Guard; (d) as an employee serving on a temporarybasis in case of fire, storm, snow, earthquake, flood, or similar emergency; or(e) in a policymaking or advisory position the performance of the duties ofwhich ordinarily does not require more than eight hours per week. The servicesto which clause (d) of the preceding sentence applies include but are notlimited to temporary emergency services compensated solely by a fixed paymentfor each emergency call answered whether or not provided for by prior agreementand training in preparation for such temporary emergency service whether or notcompensated.
j. On and afterJanuary 1, 1978, the term "employment" includes services performed inany calendar year by employees of nonprofit elementary and secondary schools.
k. The term"employment" does not include:
1, 2. Repealed by SessionLaws 1993 (Reg. Sess., 1994), c. 680, s. 7.
3. Service with respectto which unemployment insurance is payable under an employment security systemestablished by an act of Congress: Provided, that the Commission is hereby authorizedand directed to enter into agreements with the proper agencies under such actof Congress, which agreements shall become effective 10 days after publicationthereof in the manner provided in G.S. 96‑4(b) for general rules, toprovide potential rights to benefits under this Chapter, acquired rights tounemployment insurance under act of Congress, or who have, after acquiringpotential rights to unemployment insurance, under such act of Congress,acquired rights to benefits under this Chapter.
4, 5. Repealed by SessionLaws 1993 (Reg. Sess., 1994), c. 680, s. 7.
6. Service performed onor in connection with a vessel or aircraft not an American vessel or Americanaircraft by an individual if the individual is performing services on and inconnection with such vessel or aircraft when outside the United States; or,service performed by an individual in (or as an officer or member of the crewof a vessel while it is engaged in) the catching, taking, harvesting,cultivating, or farming of any kind of fish, shellfish, crustacea, sponges,seaweeds, or other aquatic forms of animal and vegetable life (includingservice performed by such individual as an ordinary incident to any suchactivity), except (i) service performed in connection with the catching or takingof salmon or halibut, for commercial purposes, and (ii) service performed on orin connection with a vessel of more than 10 net tons (determined in the mannerprovided for determining the registered tonnage of merchant vessels under thelaws of the United States).
7. Services performedby an individual in the employ of a son, daughter, or spouse; servicesperformed by a child under the age of 21 in the employ of his father or motheror of a partnership consisting only of parents of the child.
8. Service performed byan individual during any calendar quarter for any employing unit or an employeras an insurance agent or as an insurance solicitor, or as a securities salesmanif all such service performed during such calendar quarter by such individualfor such employing unit or employer is performed for remuneration solely by wayof commission; service performed by an individual for an employing unit as areal estate agent or a real estate salesman as defined in G.S. 93A‑2,provided, that such real estate agent or salesman is compensated solely by wayof commission and is authorized to exercise independent judgment and controlover the performance of his work.
9. Services performedin employment as a newsboy or newsgirl selling or distributing newspapers ormagazines on the street or from house to house.
10. Except as provided inG.S. 96‑8(6)f.5.I., service covered by an election duly approved by theagency charged with the administration of any other state or federal employmentsecurity law in accordance with an arrangement pursuant to subdivision (l) ofG.S. 96‑4 during the effective period of such election.
11. Casual labor not inthe course of the employing unit's trade or business.
12. Service in anycalendar quarter in the employ of any organization exempt from income tax underthe provisions of section 501(a) of the Internal Revenue Code (other than anorganization described in section 401(a) of the Internal Revenue Code) or undersection 521 of the Internal Revenue Code, if the remuneration for the serviceis less than fifty dollars ($50.00).
13. Service in the employof a school, college, or university, if such service is performed (i) by astudent who is enrolled and is regularly attending classes at such school,college, or university, or (ii) by the spouse of such a student, if such spouseis advised, at the time such spouse commences to perform such service, that (I)the employment of such spouse to perform such service is provided under aprogram to provide financial assistance to such student by such school,college, or university, and (II) such employment will not be covered by anyprogram of unemployment insurance.
14. Service performed byan individual who is enrolled at a nonprofit or public educational institutionwhich normally maintains a regular faculty and curriculum and normally has aregularly organized body of students in attendance at the place where itseducational activities are carried on as a student in a full‑timeprogram, taken for credit at such institution, which combines academic instructionwith work experience, if such service is an integral part of such program, andsuch institution has so certified to the employer, except that thissubparagraph shall not apply to service performed in a program established foror on behalf of an employer or group of employers.
15. Services performed(i) in the employ of a church or convention or association of churches, or anorganization which is operated primarily for religious purposes and which isoperated, supervised, controlled or principally supported by a church orconvention or association of churches; or (ii) by a duly ordained,commissioned, or licensed minister of a church in the exercise of his ministryor by a member of a religious order in the exercise of duties required by suchorder; or (iii) in a facility conducted for the purpose of carrying out aprogram of rehabilitation for individuals whose earning capacity is impaired byage or physical or mental deficiency or injury or providing remunerative workfor individuals who because of their impaired physical or mental capacitycannot be readily absorbed in the competitive labor market by an individualreceiving such rehabilitation or remunerative work; or (iv) as a part of anunemployment work‑relief or work‑training program assisted orfinanced in whole or in part by any federal agency, an agency of a state orpolitical subdivision thereof, or an Indian tribe, by an individual receivingthe work relief or work training, unless a federal law, rule or regulationmandates unemployment insurance coverage to individuals in a particular work‑reliefor work‑training program; (v) after December 31, 1971, by an inmate for ahospital in a State prison or other State correctional institution or by apatient in any other State‑operated hospital, and services performed bypatients in a hospital operated by a nonprofit organization shall be exempt;(vi) after December 31, 1971, in the employ of a hospital, if such service isperformed by a patient of such hospital; (vii) after December 31, 1971, by aninmate of a custodial or penal institution.
16. Notwithstanding theprovisions of G.S. 96‑8(6)f.3. and 96‑8(6)k.6., service performedby an individual on a boat engaged in catching fish or other forms of aquaticanimal life under the arrangement with the owner or operator of such boatpursuant to which: (A) The individual does not receive any cash remuneration(other than as provided in subparagraph (B)), (B) The individual receives ashare of the boat's (or the boats' in the case of a fishing operation involvingmore than one boat) catch of fish or other forms of aquatic animal life or ashare of the proceeds from the sale of such catch, and (C) The amount of theindividual's share depends on the amount of the boat's (or the boats' in thecase of a fishing operation involving more than one boat) catch of fish orother forms of aquatic animal life, but only if the operating crew of the boat(or each boat from which the individual receives a share in the case of afishing operation involving more than one boat) is normally made up of fewerthan 10 individuals. In order to preserve the State's right to collect Stateunemployment taxes for which a credit against federal unemployment taxes may betaken for contributions paid into a State unemployment insurance fund, thisparagraph 16 does not apply, with respect to any individual, to service duringany period for which an assessment for federal unemployment taxes is made bythe Internal Revenue Service pursuant to the Federal Unemployment Tax Act whichassessment becomes a final determination (as defined by section 1313 of theInternal Revenue Code).
17. Services performed byan inmate of the North Carolina prison system on work release.
18. Service performed bya full‑time student in the employ of an organized camp
I. If such camp:
A. Did not operate formore than seven months in the calendar year and did not operate for more thanseven months in the preceding calendar year; or
B. Had average grossreceipts for any six months in the preceding calendar year which were not morethan thirty‑three and one‑third percent (331/3%) of its averagegross receipts for the other six months in the preceding calendar year; and
II. If the full‑timestudent performed services in the employ of such camp for less than 13 calendarweeks in the calendar year.
As usedin this sub‑subdivision, an individual shall be treated as a full‑timestudent for any period:
I. During which theindividual is enrolled as a full‑time student at an educationalinstitution; or
II. Which is betweenacademic years or terms if:
A. The individual wasenrolled as a full‑time student at an educational institution for theimmediately preceding academic year or term; and
B. There is areasonable assurance that the individual will be so enrolled for the immediatelysucceeding academic year or term after the period described in sub‑subparagraphA. of this subparagraph.
19. Service performed asa resident by an individual who has completed a four‑year course inmedical school chartered or approved pursuant to State law, provided that theservice is performed for and while in the employment of a nonprofitorganization created to provide medical services to a targeted socio‑economicallydisadvantaged group within this State.
20. Services performed byan individual who is an alien having residence in a foreign country which theindividual has no intention of abandoning who possesses a valid J‑1 Visaand is present in the State for a period of six months or less pursuant to theprovisions of 8 U.S.C. § 1101(a)(15)(F)(J)(M)(Q).
21. Service performed bya substitute teacher or other substitute employee for a public, charter, orprivate school unless the individual was employed as a full‑timesubstitute. For the purposes of this sub‑subdivision only, an individualis employed as a full‑time substitute when employed to work at least 30hours per week over at least six consecutive months of a school year.
22. Performance of extraduties for a public, charter, or private school, such as coaching athletics,acting as a choral director, or other extra duties.
(7) "Employmentoffice" means a free public employment office, or branch thereof, operatedby this State or maintained as a part of a state‑controlled system ofpublic employment offices.
(7a) Reserved for futurecodification purposes.
(7b) Reserved for futurecodification purposes.
(7c) "Fund"means the Unemployment Insurance Fund established by this Chapter, to which allcontributions required and from which all benefits provided under this Chaptershall be paid.
(7d) Reserved for futurecodification purposes.
(7e) Reserved for futurecodification purposes.
(7f) Internal RevenueCode. The Code as defined in G.S. 105‑228.90.
(8) Recodified assubdivision (7c) by Session Laws 2001‑414, s. 34.
(8a) "Reemploymentservices" means job search assistance and job placement services, such ascounselling, testing, assessment, and providing occupational and labor marketinformation, job search workshops, job clubs, referrals to employers, and othersimilar services.
(8b) "Severelydisabled veteran" means an honorably discharged veteran of the armedforces of the United States who has received a disability rating from theUnited States Department of Veterans Affairs that meets the disabilitypercentage requirements set forth in 38 CFR 4.16, as amended, if the veteran(i) has a right to apply to the United States Department of Veterans Affairsfor compensation based on total disability or individual unemployability, and(ii) has elected to work instead of assert the right to receive compensationfrom the United States Department of Veterans Affairs based on total disabilityor individual unemployability.
(9) "State"includes, in addition to the states of the United States, the District ofColumbia, the Commonwealth of Puerto Rico, and the Virgin Islands.
(10) (Effective untilJuly 1, 2011) Total and partial unemployment.
a. For the purpose ofestablishing a benefit year, an individual shall be deemed to be unemployed:
1. If the individualhas payroll attachment but, because of lack of work during the payroll week forwhich the individual is requesting the establishment of a benefit year, theindividual worked less than the equivalent of three customary scheduled full‑timedays in the establishment, plant, or industry in which the individual has payrollattachment as a regular employee. If a benefit year is established, it shallbegin on the Sunday preceding the payroll week ending date.
2. If the individualhas no payroll attachment on the date the individual reports to apply forunemployment insurance. If a benefit year is established, it shall begin on theSunday of the calendar week with respect to which the claimant met thereporting requirements provided by Commission regulation.
b. For benefit weekswithin an established benefit year, a claimant shall be deemed to be:
1. Totally unemployed,irrespective of job attachment, if a claimant's earnings for such week,including payments defined in subparagraph c below, would not reduce theclaimant's weekly benefit amount as prescribed by G.S. 96‑12(c).
2. Partiallyunemployed, if the claimant has payroll attachment but because of lack of workduring the payroll week for which the claimant is requesting benefits theclaimant worked less than three customary scheduled full‑time days in theestablishment, plant, or industry in which the claimant is employed and whoseearnings from such employment (including payments defined in subparagraph cbelow) would qualify the claimant for a reduced payment as prescribed by G.S.96‑12(c).
3. Part‑totallyunemployed, if the claimant had no job attachment during all or part of suchweek and whose earnings for odd jobs or subsidiary work (including paymentsdefined in subparagraph c below) would qualify the claimant for a reducedpayment as prescribed by G.S. 96‑12(c).
c. No individual shallbe considered unemployed if, with respect to the entire calendar week, theindividual is receiving, has received, or will receive as a result of theindividual's separation from employment, remuneration in the form of (i) wagesin lieu of notice, (ii) accrued vacation pay, (iii) terminal leave pay, (iv)separation pay, or (v) dismissal payments or wages by whatever name. Provided,however, if such payment is applicable to less than the entire week, theclaimant may be considered to be unemployed as defined in subsections a and bof this paragraph. Sums received by any individual for services performed as anelected official who holds an elective office, as defined in G.S. 128‑1.1(d),or as a member of the N. C. National Guard, as defined in G.S. 127A‑3, oras a member of any reserve component of the United States Armed Forces shallnot be considered in determining that individual's employment status under thissubsection. Benefits paid under this subdivision shall not be charged to theaccount or accounts of the base period employer or employers.
d. An individual's weekof unemployment shall be deemed to commence only after his registration at anemployment office, except as the Commission may by regulation otherwiseprescribe.
e. Repealed by SessionLaws 2009‑506, s. 2, effective October 1, 2009, and applicable to claimsfiled on or after that date.
(10) (Effective July 1,2011) Total and partial unemployment.
a. For the purpose ofestablishing a benefit year, an individual shall be deemed to be unemployed:
1. If he has payrollattachment but, because of lack of work during the payroll week for which he isrequesting the establishment of a benefit year, he worked less than theequivalent of three customary scheduled full‑time days in theestablishment, plant, or industry in which he has payroll attachment as aregular employee. If a benefit year is established, it shall begin on theSunday preceding the payroll week ending date.
2. If he has no payrollattachment on the date he reports to apply for unemployment insurance. If abenefit year is established, it shall begin on the Sunday of the calendar weekwith respect to which the claimant met the reporting requirements provided byCommission regulation.
b. For benefit weekswithin an established benefit year, a claimant shall be deemed to be:
1. Totally unemployed,irrespective of job attachment, if his earnings for such week, includingpayments defined in subparagraph c below, would not reduce his weekly benefitamount as prescribed by G.S. 96‑12(c).
2. Partiallyunemployed, if he has payroll attachment but because of lack of work during thepayroll week for which he is requesting benefits he worked less than threecustomary scheduled full‑time days in the establishment, plant, orindustry in which he is employed and whose earnings from such employment(including payments defined in subparagraph c below) would qualify him for areduced payment as prescribed by G.S. 96‑12(c).
3. Part‑totallyunemployed, if the claimant had no job attachment during all or part of suchweek and whose earnings for odd jobs or subsidiary work (including paymentsdefined in subparagraph c below) would qualify him for a reduced payment asprescribed by G.S. 96‑12(c).
c. No individual shallbe considered unemployed if, with respect to the entire calendar week, he isreceiving, has received, or will receive as a result of his separation fromemployment, remuneration in the form of (i) wages in lieu of notice, (ii)accrued vacation pay, (iii) terminal leave pay, (iv) severance pay, (v)separation pay, or (vi) dismissal payments or wages by whatever name. Provided,however, if such payment is applicable to less than the entire week, theclaimant may be considered to be unemployed as defined in subsections a and bof this paragraph. Sums received by any individual for services performed as anelected official who holds an elective office, as defined in G.S. 128‑1.1(d),or as a member of the N. C. National Guard, as defined in G.S. 127A‑3, oras a member of any reserve component of the United States Armed Forces shallnot be considered in determining that individual's employment status under thissubsection. Provided further, however, that an individual shall be consideredto be unemployed as to receipt of severance pay for any week the individual isregistered at or attending any institution of higher education as defined inG.S. 96‑8(5)j., or secondary school as defined in G.S. 96‑8(5)q.,or Commission approved vocational, educational, or training programs as definedin G.S. 96‑13.
d. An individual's weekof unemployment shall be deemed to commence only after his registration at anemployment office, except as the Commission may by regulation otherwiseprescribe.
e. Repealed by SessionLaws 2009‑506, s. 2, effective October 1, 2009, and applicable to claimsfiled on or after that date.
(10a) "Undue familyhardship" arises when an individual is unable to accept a particular shiftbecause the individual is unable to obtain (i) child care during that shift fora minor child who is in the legally recognized custody of the individual, (ii)elder care during that shift for an aged or disabled parent of the individual,or (iii) care for any disabled member of that individual's immediate family.
(11) "EmploymentSecurity Administration Fund" means the Employment Security AdministrationFund established by this Chapter, from which administrative expenses under thisChapter shall be paid.
(12) "Wages"means all remuneration for services from whatever source.
(13) a. "Wages"shall include commissions, bonuses, any sums paid to an employee by an employerpursuant to an order of any court, the National Labor Relations Board, or anyother lawfully constituted adjudicative agency or by private agreement,consent, or arbitration for loss of pay by reason of discharge, and the cashvalue of all remuneration in any medium other than cash. The reasonable cashvalue of remuneration in any medium other than cash shall be estimated anddetermined in accordance with rules prescribed by the Commission; provided, ifthe remuneration of an individual is not based upon a fixed period or durationof time or if the individual's wages are paid at irregular intervals or in suchmanner as not to extend regularly over the period of employment, the wages forany week or for any calendar quarter for the purpose of computing anindividual's right to unemployment benefits only shall be determined in suchmanner as may by authorized regulations be prescribed. The regulations shall,so far as possible, secure results reasonably similar to those that wouldprevail if the individual were paid his wages at regular intervals. The term"wages" shall not include the amount of any payment with respect toservices to, or on behalf of, an individual in its employ under a plan or systemestablished by an employing unit which makes provision for individuals in itsemploy generally or for a class or classes of such individuals (including anyamount paid by an employing unit for insurance or annuities, or into a fund, toprovide for any such payment), on account of (i) retirement, or (ii) sicknessor accident disability, or (iii) medical and hospitalization expenses inconnection with sickness or accident disability or (iv) death. However, in thecase of payments made to an employee or any of his dependents on account ofsickness or accident disability, only payments which are received under aworker's compensation law shall be excluded from the term "wages".Furthermore, the term "wages" shall not include payment by anemployer without deduction from the remuneration of the employee of the taximposed upon an employee under the Federal Insurance Contributions Act.
b. "Wages"shall not include:
1. Any payment made to,or on behalf of, an employee or the employee's beneficiary from or to a trustthat qualifies under the conditions set forth in sections 401(a)(1) and (2) ofthe Internal Revenue Code;
2. Any payment made to,or under, an annuity plan which at the time of the payment meets therequirements of sections 401(a)(3), (4), (5) and (6) of the Internal RevenueCode and exempt from tax under section 501(a) of the Internal Revenue Code atthe time of the payment, unless the payment is made to an employee of the trustas remuneration for services rendered as an employee and not as beneficiary ofthe trust; or
3. Any payment made to,or on behalf of, an employee or his beneficiary under a Cafeteria Plan withinthe meaning of section 125 of the Internal Revenue Code.
c. For the purposes ofthis Chapter, the term "wages" includes the reasonable amount ofgratuities, including tips, that an employee receives directly from a customerand reports to the employer and that the employer considers as salary for thepurpose of meeting minimum wage requirements. Effective January 1, 1987, and aslong as the Federal Unemployment Tax Act, 26 U.S.C. 3301 et seq., containsmaterially identical requirements, the term "wages" includes tipswhich are:
(1) Received whileperforming services that constitute employment; and
(2) Included in awritten statement furnished to the employer pursuant to the requirements of theInternal Revenue Code.
d. Wages shall notinclude the amount of any payment, including any amount paid into a fund toprovide for such payment, made to, or on behalf of, an employee under a plan orsystem established by an employer or others which makes provision for employeesgenerally, or for a class or group of employees, for the purpose ofsupplementing unemployment benefits, provided that the plan has been approvedby the Commission under such reasonable regulations as it shall promulgate.
(14) "Week"means such period of seven consecutive calendar days as the Commission may byregulations prescribe.
(15) "Calendarquarter" means the period of three consecutive calendar months ending onMarch 31, June 30, September 30, or December 31.
(16) "Weekly benefitamount." An individual's "weekly benefit amount" means theamount of benefits he would be entitled to receive for one week of totalunemployment.
(17) a. Repealedby Session Laws 1977, c. 727, s. 33.
b. Repealed by SessionLaws 1977, c. 727, s. 33.
c. As to claims filedon or after October 1, 1974, for claimants who do not have a benefit year inprogress, "benefit year" shall mean the one‑year periodbeginning with the first day of a week with respect to which an individualfirst registers for work and files a valid claim for benefits. A valid claimshall be deemed to have been filed only if such individual, at the time theclaim is filed, is unemployed, and has been paid wages in his base periodtotaling at least five hundred sixty‑five dollars and fifty cents($565.50), and equal to at least one and one‑half times his high‑quarterwages, which high‑quarter wages must equal at least one hundred and fiftydollars ($150.00). As to claims filed on or after August 1, 1981, for claimantswho do not have a benefit year in progress, "benefit year" shall meanthe 52 week period beginning with the first day of a week with respect to whichan individual first registers for work and files a valid claim for benefits.Provided, however, if the first day of a week with respect to which anindividual first registers for work and files a valid claim for benefits iseither (i) the first day of a calendar quarter, or (ii) the second day of acalendar quarter followed by a February 29 within one year thereof,"benefit year" shall mean the one‑year period beginning withthat first day of the week with respect to which the individual first registersfor work and files a valid claim for benefits. A valid claim shall be deemed tohave been filed only if such individual, at the time the claim is filed, isunemployed, and has been paid wages in his base period totaling at least sixtimes the average weekly insured wage, obtained in accordance with G.S. 96‑8(22),and has been paid wages in at least two quarters of the individual's baseperiod.
d. Repealed by SessionLaws, 1981, c. 160, s. 11.
(18) "Baseperiod" means the first four of the last five completed calendar quartersimmediately preceding the first day of an individual's benefit year as definedin subdivision (17) of this section. If an individual lacks sufficient baseperiod wages in order to establish a benefit year in the manner set forthabove, the claimant shall have an alternative base period substituted for the currentbase period so as not to prevent establishment of a valid claim. For thepurposes of this subdivision, "alternative base period" means thelast four completed calendar quarters.
(19) Repealed by SessionLaws 1977, c. 727, s. 35.
(20) The term "Americanvessel," as used in this Chapter, means any vessel documented or numberedunder the laws of the United States; and includes any vessel which is neitherdocumented or numbered under the laws of the United States nor documented underthe laws of any foreign country, if its crew is performing service solely forone or more citizens or residents of the United States or corporationsorganized under the laws of the United States or of any state and the term"American aircraft" means an aircraft registered under the laws ofthe United States.
(21) The words"Employment Security Law" as used in this Chapter mean any lawenacted by this State or any other state or territory or by the federalgovernment providing for the payment of unemployment insurance benefits.
(22) Average WeeklyInsured Wage. "Average weekly insured wage" is the quotientobtained by dividing the total of the wages, as defined in G.S. 96‑8(12)and (13), reported by all insured employers by the monthly average in insuredemployment under this Chapter during the immediately preceding calendar yearand further dividing the quotient obtained by 52 to obtain a weekly rate. (Forthis computation the data as released annually in the Employment SecurityCommission's publication "North Carolina Insured Employment and WagePayment" shall be used). The quotient thus obtained shall be deemed to bethe average weekly wage for such year.
(23) Repealed by SessionLaws 1993 (Reg. Sess., 1994), c. 680, s. 9.
(24) Work, for purposes ofthis Chapter, means any bona fide permanent employment the acceptance of whichwould not result in an undue family hardship as defined in G.S. 96‑8(10a).For purposes of this definition, "bona fide permanent employment" ispresumed to include only those employments of greater than 30 consecutivecalendar days duration (regardless of whether work is performed on all thosedays) provided: (a) the presumption that an employment lasting 30 days or lessis not bona fide permanent employment may be rebutted by a finding by theCommission, either on its own motion or upon a clear and convincing showing byan interested party that the application of the presumption would work asubstantial injustice in view of the intent of this Chapter; (b) Any decisionof the Commission on the question of bona fide employment may be disturbed onjudicial review only upon a finding of plain error.
(25) Repealed by SessionLaws 1981, c. 160, s. 12.
(26) If two or morerelated corporations concurrently employ the same individual and compensate theindividual through a common paymaster that is one of the related corporations,each related corporation shall be considered to have paid as remuneration tothe individual only the amounts actually disbursed by it to the individual andshall not be considered to have paid as remuneration to the individual amountsactually disbursed to the individual by another of the related corporations.
(27) "Immediatefamily" means an individual's wife, husband, mother, father, brother,sister, son, daughter, grandmother, grandfather, grandson, granddaughter,whether the relationship is a biological, step‑, half‑, or in‑lawrelationship.
(28) Willfully. For thepurposes of this Chapter, the terms "willfully" and"knowingly" shall have the same meaning.
(29) Seeking only part‑timework. Where an individual is available to work for a number of hours per weekthat are comparable to the individual's part‑time work experience in hisor her base period. (Ex. Sess. 1936, c. 1, s. 19; 1937, c. 448, s. 5; 1939, c. 27, ss. 11‑13;c. 52, ss. 6, 7; c. 141; 1941, cc. 108, 198; 1943, c. 377, ss. 31‑34; c.552, ss. 1, 2; 1945, c. 522, ss. 5‑10; c. 531, ss. 1, 2; 1947, c. 326,ss. 7‑12; c. 598, ss. 1, 5, 8; 1949, c. 424, ss. 3‑81/2; cc. 523,863; 1951, c. 322, s. 1; c. 332, ss. 2, 3, 18; 1953, c. 401, ss. 1, 7‑11;1955, c. 385, ss. 3, 4; 1957, c. 1059, ss. 2‑4; 1959, c. 362, ss. 2‑6;1961, c. 454, ss. 4‑15; 1965, c. 795, ss. 2‑5; 1969, c. 575, ss. 4‑6,15; 1971, c. 367; c. 673, ss. 5‑13; c. 863; c. 1231, s. 1; 1973, c. 172,s. 1; c. 476, ss. 133, 152; c. 740, s. 2; c. 1138, ss. 1, 2; 1975, c. 226, s.3; 1977, c. 727, ss. 14‑36; 1979, c. 660, ss. 3‑12; 1981, c. 160,ss. 3‑12; c. 774, s. 1; 1983, c. 585, s. 20; c. 625, s. 9; c. 675; 1985,c. 57; c. 197, s. 3; c. 322, s. 1; c. 552, ss. 1‑4; 1987, c. 103, ss. 2,3; c. 212; c. 564, s. 21; 1987 (Reg. Sess., 1988), c. 999, s. 1; 1989, c. 410;c. 583, ss. 3, 5; c. 770, ss. 18, 19; 1991, c. 458, s. 1; 1993, c. 122, s. 1; c. 553, s. 30; 1993 (Reg. Sess.,1994), c. 680, ss. 4, 7‑9; 1997‑109, s. 5; 1997‑120, s. 1;1997‑404, ss. 1, 2; 1997‑443, s. 11A.118(a); 1997‑456, s. 27;1998‑212, s. 11.8(g); 1999‑196, ss. 1, 2; 200